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Court’s Hathcock Ruling Offers Clues to Beach Walking Suit

Glass v. Goeckel decision expected this month

July 10, 2005 |
Great Lakes Bulletin News Service

Carol Blundy/MLUI

If the state Supreme Court justices side with Great Lakes shoreline owners who oppose beach walking in front of their homes, fences likes these, on Lake Michigan near South Haven, could become commonplace.

Sometime in the next few weeks the Michigan Supreme Court is expected to rule in a widely watched case  that will decide whether citizens have the right to walk along Great Lakes shoreline that is in front of private beachfront homes.

The case, Glass v. Goeckel, is at its simplest level a dispute between neighbors along Lake Huron who didn’t get along. But as the fight worked its way through the state court system, attracting attention from political leaders, lawyers, and civic organizations across the political spectrum, Glass v. Goeckel became a classic test of two signature and competing American values: the rights of private landowners and the rights of citizens to use the public domain.

In deciding who can walk along the Great Lakes shoreline, the state Supreme Court will be considering whether to extend or narrow the idea of public access to the public commons, in this case the coast of the Great Lakes.

No one knows how the court will rule. But lawyers who have been closely following the proceedings in the beach walking case say a Supreme Court decision a year ago in a Wayne County property rights case may provide clues to how the current court could rule.

Attorneys interviewed for this article said the fundamental disputes are similar in both the beach walking case and the Wayne County case. The way that the High Court resolved the Wayne County case, said the attorneys, could be an indication in how the justices decide the beach walking case.

A Property-Friendly Decision
These are the facts of the Wayne County v. Hathcock case: In April 2001 Wayne County proposed the Pinnacle Project, a 1,300-acre business and technology park to develop new jobs and tax revenue. Though many landowners sold their land willingly to the county, owners of 46 parcels in the project boundaries, including one owned by Edward Hathcock, refused. When it became evident that the parties involved had no intention of parting with their ground, Wayne County tried to deploy its powers of condemnation and eminent domain to acquire the parcels for fair-market value. Still, 19 owners refused. Wayne County then filed suit in Circuit Court to gain control of those properties.

The trial court ruled in favor of the county in December 2001, a decision upheld by the state Appellate Court in April 2003. The Circuit Court and Appellate judges noted that the condemnation fell within the legal boundaries of prior Supreme Court cases for taking private land, that state statutes authorized the taking, and that the county used its discretion correctly in calling for a condemnation of the properties in question. 

The property owners appealed to the Michigan Supreme Court, which reversed the lower courts in a 4-3 decision. The majority found that “there are no facts of independent public significance (such as the need to promote health and safety) that might justify the condemnation of defendants’ lands” for the Pinnacle Project. In other words, in order for the county to gain control of private land for its project it had to show an overriding public benefit, which the court found lacking. Without a clear public benefit, the justices said, it was unconstitutional for the county to justify its desire to increase jobs and tax revenue at the expense of taking private land. Under the federal and state constitutions, private property cannot be taken unless it is for public use or purpose.

Former Chief Justice Maura D. Corrigan delivered the opinion in the Hathcock case, joined by three other Republicans, Justices Clifford W. Taylor, Stephen J. Markman, and Robert P. Young, Jr. The four justices have much in common: They are conservatives and active in that cause; all are members of the Federalist Society, a network of libertarian and conservative lawyers, judges, and scholars across the United States; and all four were originally appointed to high court positions —three to the Supreme Court and one to the Appellate Court— by another Federalist Society member, former Republican Governor John Engler.

In contrast, the three judges who formed the minority in the case are more politically centrist: Democrats Michael F. Cavanagh and Marilyn Kelly, and Republican Elizabeth Weaver. Neither Democrat has widely publicized activist ties, while Republican Weaver is active with public service groups, including juvenile justice and probate law boards. Strikingly, all of them gained their high court positions through elections, not appointments.

So the question is: Will the Engler-appointed majority in the Hathcock case vote as a block for the strongest possible pro-property rights interpretation in the beach walking case and effectively ban the practice? Or is there something else in the Hathcock case that indicates the four may see some ideological “wiggle room” that convinces them to allow beach walking to continue?

Glass v. Goeckel
These are the facts of the beach walking case: In 2000, then-70-year-old Joan Glass, who lived on the west side of US 23 in Alcona County, clipped a few branches on a 15-foot-wide trail, a deeded easement that she had bought and used for years to reach Lake Huron. Richard and Kathleen Goeckel, who had recently purchased the shoreline property bordering the easement, objected. Though their accounts differ, there is no dispute that it wasn’t long before the neighbors began fighting over the use of the easement and the beach.

Mr. Goeckel, according to court documents, tried to stop Mrs. Glass from trimming trees along the easement, blocked the trail with his vehicle, put a heavy barrel in the center of the trail as a barrier, and told Mrs. Glass she could no longer use the beach. Mrs. Glass filed suit in 2001 in Alcona County Circuit Court, asserting that the easement established her legal right to walk to the beach and that well-established public trust and common law allowed her to walk along the water’s edge.

The issue of whether Mrs. Glass had a right to use her easement to get to the beach was settled by the trial court in her favor on July 9, 2001. The Goeckels, though, continued the case and accused Mrs. Glass of trespassing on the beach, which they said was their property. Mrs. Glass countered that the beach below the ordinary high water mark is held in trust for the benefit of all citizens for navigation and recreation. As a member of the public, Mrs. Glass argued, she had the right to walk along Lake Huron, just as generations have always done.

On April 4, 2002, the trial court issued its opinion, again in Mrs. Glass’s favor. The court noted, however, that there was no clear precedent in state statutes or law that expressly provided citizens the right to walk on Great Lakes beaches.

The Goeckels jumped through that opening and appealed. On May 13, 2004, in an 11-page opinion, the three-judge panel ruled that private owners control beachfront to the water’s edge and that if citizens want to walk along the Great Lakes shoreline they must do so with their feet in the water. The Appellate ruling, said Pamela Burt, Mrs. Glass’ attorney, reversed generations of tradition and common law.

Consistency In Both Cases
Jeffrey Haynes, a prominent environmental attorney from Bloomfield Hills, noted that both the Hathcock case and the beach walking case are fundamentally about “property owners versus public uses.”

James Olson, an environmental lawyer from Traverse City, added that the current court, which tends to follow established legal precedents, consistently “protects property rights, but has also recognized the interests of the public in cases involving regulation of private property.”

But attorneys familiar with the Hathcock decision and the facts of the beach walking case say that the court’s upcoming decision could also balance heavily on the idea of the public benefit.

In the Hathcock decision, the court did not view the public benefit to be of such a significantly high priority that it overcame the imposition on private landowners. In the beach walking case, the public benefit is clearly apparent in the millions of citizens who annually stroll Michigan’s 3,200 miles of Great Lakes shoreline, spend billions of dollars in shoreline communities, and have done so for decades.

In the beach walking case, the public benefit may be seen by a majority of jurists as at least equal to the interests of private shoreline owners. “The public has always had the right to walk the shores of the Great Lakes under decisions of the Michigan Supreme Court dating back more than a century,” said Ms. Burt.

Mr. Olson added that because the public good from established public rights and beach walking along the shore is so high, the Supreme Court “may not want to benefit property owners by giving them total control over beaches in front of their homes at the expense of public rights.”

If that is the case, a majority of Supreme Court justices may be inclined to issue a ruling that is less dogmatic than the Hathcock decision. Such a decision could protect Mrs. Glass’ right to walk the beaches solely along the water’s edge, but also aid private land owners by allowing them to control specific parts of the beach below the high water mark and above a narrow band along the water’s edge.

While the lawyers and their clients await the Supreme Court’s decision in the beach walking case, attorneys interviewed for this article hesitated to predict the outcome. While past decisions may reveal a pattern in the court’s proclivities, they don’t accurately predict how the court will rule in any one instance.

John Latella, a student at the University of Chicago, is a Jeff Metcalf Fellow on the Michigan Land Use Institute’s news desk. Reach him at john@mlui.org.

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